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How we resolve our disputes

Entries in disqualification (1)

Thursday
Nov052009

Recuse me

In a prior post, I wondered whether anyone but me was paying attention to how we judge our judges. I still wonder about that, but at least now it seems that other legal policy wonks like me are paying attention to when a judge must recuse himself from hearing a case. Thanks to the U.S. Supreme Court’s decision in Caperton v. A. T. Massey Coal Co., courts around the country have been considering how to handle recusal motions.  In a 4-3 vote, the Wisconsin Supreme Court adopted rules amending the state’s Code of Judicial Conduct so that recusal is not required merely because a party to the proceedings contributed to the judge’s election campaign, or sponsored an independent expenditure or issue advocacy during the judicial campaign. The majority apparently rested on contributors’ First Amendment rights. In Florida, several committees of the Florida Bar are considering how judges should handle motions for disqualification. One of the alternatives they are considering is the equivalent of a peremptory challenge, like the judicial substitution rules in Wisconsin (Wis. Stats. secs. 801.58 and 971.20). Most attorneys and judges agree that those rules work rather well in the trial courts. It will be interesting to see if something like that can be applied in the appellate courts. For example, what if criminal defendants (or their defense attorneys) routinely filed substitution requests against an appellate or supreme court judge who had campaigned on the theme that he would be “tough on crime.” (Don’t they all?) Who would then sit in for that judge? Or would the court simply be shorthanded? Obviously, the details and mechanics of the rule need some work. But the idea that litigants should be able to “judge” the judges, by filing recusal motions or substitution requests, has some merit. Whether judges are elected or appointed, the litigants and attorneys who appear before them are best situated to judge their performance on the bench. Shouldn’t we give them some measurable and meaningful method of expressing their approval or disapproval? Money talks, but so does a motion to recuse, or request to substitute, a judge.